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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102145
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am looking for child tax credits entitlement advice in a

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I am looking for child tax credits entitlement advice in a joint child custody arrangement that is not being abided by.

I have a joint custody arrangement agreed through mediation in the family court that consists on me (the mother) looking after our daughter for 7 days and my ex husband taking her for the next 7 days, and we alternate like this. On this basis, it is also agreed that we alternate the years we claim child tax credit. He claimed her on his taxes in 2012 and I claimed her this year. However the agreement has not been stuck to and my ex husband has been taking our daughter from Friday nights until Sundays 5pm, if that. So, when I spoke to a tax specialist at a large firm they assured me of the IRS 'tie breaker rule' that states if you take your child to school and they live with you during the week (which is the case for me) that I would be entitled to claim her on my taxes again in 2014 and that this would overide the custody court agreement, since it is not being met. I just want to calrify that this IS the case as I do not want to get in trouble if I claim my daughter on my taxes when in the agreement it says it is my ex husband's year to claim her.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. I am afraid that the advice that you may have received may have been misleading. Allow me to clarify.

By default, the IRS will convene a tax credit on an individual who satisfies the requisites of living with you the majority of the year, and you being responsible for them - see here.

This is default. Often, the family court will dictate a decree where the parents share the child tax credit, alternating the years. This is what has happened here. The IRS provides an exception to their default if the decree overwrites it.

So this is what has happened here. However, the issue is that the custody order that has been followed in the decree has been skewed. Even though you have been taking majority care of the child, the IRS would still be following the written decree. The IRS does not know that you and he had an informal arrangement which really should make you the beneficiary.

What someone in your situation may wish to do is to file a Motion for Clarification in the family court, and have the Judge issue a quick supplemental order that adjusts the decree and has you claim credit for the time that you ACTUALLY had the child, and also lay down orders as to what to do in the future if the custody order again becomes skewed by an informal arrangement.

Otherwise, between YOUR CLAIM and the DECREE, the IRS will go with the decree because that is what they have in writing from the Court.

I hope this helps and clarifies. Best of luck.

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